Category: Licensing

Why Do YOU Need a Lawyer?

Posted on by Delain Law Office

You’re forming a business. You need a lawyer because you need to do it right. You need the magic words that form the business you want to form in the formation documents (do you know what those magic words are?).

Or maybe you’re developing a brand for your new business. You need a lawyer because you need to do it right. Yes, a lawyer is expensive, but a trademark infringement action brought by a senior user of the mark you adopt … without knowing there even IS a senior user … gets mighty pricey mighty quickly.

Or you’ve invented something and you want to get your invention out to the public immediately. But wait; do you want to profit from your invention? You need to take steps to protect that invention. Do you know what steps are available to you? And do you know how steps that seem to be diametric opposites and never able to work together can actually allow you to effectively extend the term of protecting your invention? You need a lawyer because you need to do it right.

Or maybe you’ve written something. Let’s say you’re J.K. Rowling and you’ve just completed your very first “Harry Potter” book. You want all the protection you can get for that book. Do you know the ins and outs of obtaining and using that protection? You need a lawyer because you need to do it right.

Or you want to … ooh, ooh, ooh … start up a company that franchises its business methods and trademark (i.e., you’re Ray Croc) out to others. What do you need to do to start that franchise and comply with the state and federal laws that govern franchises? What business and legal models do you need to have in place? You need a lawyer because you need to do it right.

Or you don’t want to franchise, but you do want to license your intellectual property for others to use. How do you license out your intellectual property without creating a franchise? You need a lawyer because you need to do it right.

Or someone has handed you a contract to sign. It’s long and full of legal jargon. What does it actually say? Remember, lawyers use words differently than most people do, and it’s lawyers who will interpret any contract you sign that goes south. You need a lawyer because you need to do it right.

You need a lawyer because you’re in business and you need to do it right.

Delain Law Office, PLLC

 

What Is the DOJ Thinking?????!

Posted on by Delain Law Office

The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”

 

“Happy Birthday To You” Is Apparently Public Domain

Posted on by Delain Law Office

For years now, we have labored under the impression that a valid copyright exists on “Happy Birthday To You.” Evidently, that copyright’s validity is … um … questionable.

It’s not often that a big, dramatic revelation happens in a court case, but in Good Morning to You Productions Corp. et al. v. Warner/Chappell Music, Inc. et al., currently before the US District Court for the Central District of California, a new piece of evidence has just turned up that turns the copyright on “Happy Birthday” on its ear. Evidently, “Happy Birthday” is a derivative of a song called “Good Morning to You,” which was published under the 1909 Copyright Act — without notice of copyright. Today, notice means little in the world of copyright, but under the 1909 Act, notice was everything. If notice of the copyright wasn’t published with the work, the copyright in the work was void.

Interestingly, the important subtitle on the song’s manuscript was blurred in the version given by Warner/Chappell to Good Morning to You Productions as a document produced in discovery (late, I might add). That made people curious. With some good document analysis, the truth came out: the work was published without notice and therefore without copyright.

This case is still ongoing at Docket #2013-CV-04460; no court has actually invalidated the copyright on “Happy Birthday To You,” but I don’t think we need to wait too long for the Central District of California to enter judgment on behalf of Good Morning to You Productions, voiding the copyright. We will soon be able to sing “Happy Birthday” without worrying about paying a royalty.

Changes Coming for Copyright…

Posted on by Delain Law Office

This year’s two-year Congressional House Judiciary Committee’s review of copyright “focused on music licensing, discussing recently introduced legislation that has the backing of the music industry. One proposal, the Fair Play, Fair Pay Act, would establish a performance right and also require all radio formats to pay royalties for the performance of pre-1972 recordings.”

These changes to copyright are, for obvious reasons, supported by the musicians and recording artists. Royalties for playing their pre-1972 songs on the radio, in all radio formats no less, are a really good thing for them in that the royalties add additional income to the songwriter’s purse, enabling them to have at least a larger subsistence. It might even enable some of them to leave their day jobs to write music full time, which would add bounty to the music of the culture for which they write.

But wait. Let’s look at the radio stations for a minute. Radio is still a viable medium, but the radio industry has changed from the FCC-recognized model of the station and the broadcast tower and the receiver to the internet. There are literally thousands of shows run by people who want to do a radio show for whatever reason; some of those shows are talk shows, and some are music shows, and some are just junk. I worry about the music shows that play the oldies under this new law. These folks do not, as a general rule, follow the intricacies of the changes to copyright law, and, without proper publication and warning about this new royalty requirement, they could be caught in a vise from which they do not have the means to escape. I can see coming down the pike a reenactment of the RIAA vs. Music Downloaders huge number of cases of the early 2000s. That didn’t work well then; I see no reason why it would work better today.

Don’t get me wrong. I support this addition to the Copyright Act. I want to see songwriters get paid fairly for their contributions to the world, and I think that pre-1972 music should be compensated just as much as post-1972 music. However, I support the addition with the proviso that the public be thoroughly and completely noticed using communication means that they simply cannot miss getting something through even the foggiest radar about this new law. I want to see and hear discussion of this new copyright provision on the news, in the newspapers, on the radio, on PSAs, and all over Facebook and Twitter, and I want to see multiple iterations of the warnings that this new law can, and probably will, cause liability for a careless radio show host for a large bundle of preventable judgment money and attorneys’ costs. This new liability will be in effect even for a fly-by-night internet radio show host. These are the folks who stand to lose the most and who therefore need to see the warning of the effect of this new addendum to the Copyright Act.

The FTC Finally Targets an IP Troll

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For any who don’t know, a “troll” is a company (and its lawyers) that sends out thousands of cease-and-desist letters threatening a lawsuit against a supposed infringer of that company’s supposed intellectual property. It’s a nasty practice that has brought the trolls (and their lawyers) many hundreds of thousands of dollars over the years. Finally, the Federal Trade Commission is beginning to protect the innocent public against these unscrupulous “licensing” demands.

American Broadcasting Companies vs. Aereo, Inc.

Posted on by Delain Law Office

A couple of weeks ago, overshadowed by the Hobby Lobby decision, SCOTUS handed down a copyright decision that may substantially limit the ability of transmitters to transmit copyrighted broadcasts without a license to do so.

In American Broadcasting Cos. v. Aereo, Inc., 573 US ___ (2014), Aereo is a subscription broadcasting service that sold “…to its subscribers a technologically complex service that allows them to watch television programs over the internet at about the same time as the programs are broadcast over the air.” Slip Op. at 1. The technology is detailed in the case, so I do not reproduce it here; suffice it to say that through a complex series of technological events, each Aereo subscriber ends up having his or her own dedicated antenna through which copyrighted content is streamed to one computer only. The US District Court for the Southern District of New York, affirmed by the US Court of Appeals for the Second Circuit, found that this technology does not infringe the rights of the copyright holders of the shows that Aereo streams to its users because, first, Aereo does not “perform” within the meaning of the Copyright Act and, second, even if it does “perform,” it does not do so “publicly” because there is a dedicated antenna connected to only one computer, making the streaming a private showing, thus falling outside the “public” performance requirement of the Act to qualify as infringement.

SCOTUS disagrees. In a 6-3 decision delivered by Justice Breyer (the dissent comprises Justices Scalia, Thomas and Alito; all others concur in the majority opinion), the Court decreed that the 1976 Copyright Act was put in place, in large part, to overturn their decision in Fortnightly Corp v. United Artists Television, Inc., 392 US 390 (1968), which held that community-antenna television falls outside of the scope of the Copyright Act of 1952. Given the clear intent of Congress to make such activities fall very definitely within the scope of the Copyright Act, and given that Aereo’s activity are not substantially different from those of Fortnightly, the Court felt duty-bound to overturn the Court of Appeals for the Second Circuit’s holding that Aereo’s activities do not infringe copyright. SCOTUS holds for the plaintiff in determining whether (a) Aereo “performs” within the meaning of the Act and (b) Aereo performs “publicly” within the meaning of the Act.

There is language in the case that indicates that this case can be read narrowly, but this case puts rebroadcasters on notice: The act of rebroadcasting is a “transmission” within the meaning of the Act, and the viewer and broadcaster “perform publicly” within the meaning of the Act.

I advise my clients that it’s always easiest, best, cheapest to get a license to use the copyrighted works of others. This case just goes to show that this advice is still good.

The oral arguments on both sides are actually interesting for those of us who like copyright matters.

DirecTV and AT&T Merge

Posted on by Delain Law Office

By now, everyone’s heard that AT&T is proposing to buy DirecTV for $48.5 billion in cash and stock.

I’m wondering why.

DirecTV and AT&T compete in a few marketplaces in the US, but not really in enough markets to justify a $48.5 billion takeover, especially in the current technological environment. DirecTV’s technology will do nothing to enhance AT&T’s current technology in that DirecTV does not offer internet service and AT&T cannot use it to improve their mobile service. More and more people watch video online, on sites like YouTube (owned by Google, Inc.) and Netflix, meaning the additional customer base for pay TV is likely to continue to dwindle (last year, the number of households that use pay TV actually dwindled). Satellite TV has its issues, too; when I had DirecTV, any interference with the direct line of vision between the dish and the satellite pixellated the picture or canceled the transmission altogether. Snowstorms and rain storms are examples of “interference with the direct line of vision.” In the Great Northeast, we get both on a regular basis.

Regulators are likely to have concerns over this merger, too. This would reduce the number of pay TV options available to consumers in about half of the US markets. Because decreased competition can have the effect of raised prices, this would seem to me not to be in the public’s best interest. This merger makes AT&T the second-largest provider of pay TV services, assuming all of the current customers stick with them (Comcast/Time-Warner is larger). Monopolies are not popular with regulators, either.

I can think of all these reasons for AT&T not to enter this merger; I can’t think of a single reason for them to do so.

So … why?

Fair Use and Faulkner

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The rightsholder for the works of William Faulkner sued — twice — over infringements of their copyrights.Although the suits were originally poo-poohed, the question asked by the two suits — what are the limits of fair use — is a question that has long plagued copyright holders and infringers alike. Maybe, just maybe, we’ll get a new signpost on the road map to determine what does and does not constitute fair use of a copyrighted work.

The copyrights for the works of William Faulkner, who won the Nobel Prize in Literature in 1949 and died in July, 1962, are handled by Faulkner Literary Rights, LLC, which filed suits against Sony Pictures Classics, Inc. and Northrop Grumman, Inc., a defense contractor, in two different Mississippi federal district courts in October 2012. In both cases, the rightsholder contends that the defendants should have asked them for a license to use Faulkner’s material. Both defendants respond that the cases are frivolous and their use is covered by the fair use doctrine. Sony may have a leg to stand on there, but Northrop Grumman is a defense contractor who ran an ad using Faulkner’s materials in a way that the rightsholder would not have consented to. Is that fair use, too? We shall see….

Microsoft Can't Sell Windows in China

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According to PC World, a Chinese court has ruled that WIndows violates a Chinese company’s IP rights.

Of course, China, where somewhere around 80% of electronic materials such as computer software, movies and DVDs, and other media are pirated copies, shouldn’t complain.

The problem is over the interpretation of a licensing agreement between Microsoft and the company in question; the company says that the fonts it owns are not included in the licensing agreement, Microsoft says they are.

We’ll see who wins in the Chinese judicial system. My best wishes and condolences to Microsoft (and I’m not usually on their side).

Disney to Buy Marvel for $4 Billion – ABC News

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Disney to Buy Marvel for $4 Billion – ABC News.

Wow. Just wow.

Disney is already among the biggest entertainment businesses in the world, what with the movies and the theme parks and the hotel properties and the Broadway shows and all the rest of it. I believe they even have an inroad in the comics market (if they don’t now, I’m sure they did when I was a kid; I remember Mickey Mouse comics). Marvel has a thoroughly different look from Disney, so this will be an interesting evolution. I wonder if Superman will develop the Disney eyes?